Criminal Appeal No. 1272 of 2015 · The High Court
Case Details
- 1 - NC: 2025:KHC:17141 CRL.A No. 1272 of 2015 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF APRIL, 2025 BEFORE THE HON'BLE MR JUSTICE H.P.SANDESH CRIMINAL APPEAL NO.1272 OF 2015 BETWEEN: 1. SRI. R. RAJVI, S/O RATHNAM, AGED ABOUT 38 YEARS, NO.312, “IDA COTTAGE”, 1ST CROSS, MATHIKERE, BENGALURU-560 054. (BY SRI. C.H.SRINIVAS, ADVOCATE) …APPELLANT AND: 1. SRI. ASWATHNARAYANA K.V., S/O LATE K. VENKATESHAIAH, AGED ABOUT 62 YEARS, RESIDING AT NO.77, ”APARNA NILAYA”, ADARSHANAGAR, ARSHINKUNTE, NELAMANGALA-562 123, BENGALURU RURAL DISTRICT. Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA …RESPONDENT (BY SRI. S.N.RAMA PRASAD, ADVOCATE) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4) OF CR.P.C PRAYING TO SET-ASIDE THE JUDGMENT AND ORDER DATED 02.09.2015 PASSED BY THE XVIII A.C.M.M. AT BENGALURU IN C.C.No.3173/2013 ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 138 OF NEGOTIABLE INSTRUMENTS ACT. - 2 - NC: 2025:KHC:17141 CRL.A No. 1272 of 2015 THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE H.P.SANDESH ORAL JUDGMENT Heard the learned counsel for the appellant and the
Legal Reasoning
learned counsel for the respondent. 2. The factual matrix of the case of the complainant before the Trial Court is that the accused is well acquainted with him from many years being friend and when the accused person was in dire need of funds to meet his urgent necessities, he had approached the complainant in the month of June 2012 for urgent hand loan of Rs.4,50,000/-. The complainant due to his acquaintance and friendship with the accused, with an intention to help the accused, had extended the hand loan of Rs.4,50,000/- on 18.06.2012. The accused had promised to repay the said amount within two months and he had executed an on demand promissory note and consideration receipt dated 18.06.2012 in favour of the complainant. It is the case of the complainant that when the accused did not repay the amount within two months, he approached the accused in the month of August 2012 requesting to repay the loan amount and hence the accused - 3 - NC: 2025:KHC:17141 CRL.A No. 1272 of 2015 in discharge of his liability, issued a cheque dated 13.08.2012 for an amount of Rs.4,50,000/-. When the said cheque was presented, the same was returned with an endorsement “funds insufficient” on 14.08.2012 and the same was brought to the notice of the accused by issuing legal notice dated 12.09.2012 and the same was served on the accused on 14.09.2012. The complainant submits that the accused on receipt of the notice had failed to clear the amount with a malafide intention to cheat the complainant and he issued the reply notice dated 16.10.2012 by taking the untenable contention that he lost the cheque and the promissory note while traveling. Hence, the complaint was filed. 3. The Trial Court taken the cognizance and secured the accused and the accused did not plead guilty and hence the complainant examined himself as P.W.1 and got marked the documents at Exs.P.1 to 11 and got examined another witness as P.W.2 since the case of the complainant is that he had borrowed the amount from P.W.2 to lend the amount to the accused. The accused examined himself as D.W.1 and got marked the documents at Exs.D.1 and 2. The Trial Court having considered the material on record, acquitted the accused accepting the defence of the accused that the - 4 - NC: 2025:KHC:17141 CRL.A No. 1272 of 2015 defence is probable and it creates doubt about the existence of the legally enforceable debt or liability of the complainant. The accused disputed the financial capacity of the complainant to advance the amount of Rs.4,50,000/- as hand loan to the accused and the Trial Court comes to the conclusion that the accused was able to make out prima facie doubt regarding passing of consideration. 4. Being aggrieved by the said acquittal order, the present appeal is filed before this Court. 5. The main contention of the learned counsel for the appellant before this Court is that the very execution of the on demand promissory note, consideration receipt and cheque Ex.P.1 is not in dispute. The only defence taken by the accused is that he lost the cheque and promissory note while traveling and relies upon Exs.D.1 and 2. The learned counsel submits that the very lodging of the complaint in terms of Ex.D.1 is a created document and the complaint was not given before the jurisdictional police and the same is admitted in the cross-examination. Apart from that, when the specific defence was taken that cheque, on demand promissory note and consideration receipt was lost, in the cross-examination - 5 - NC: 2025:KHC:17141 CRL.A No. 1272 of 2015 D.W.1 admits that the promissory note was written eight months ago and cheque was prepared two days ago, but no explanation what made him to write the cheque as well as promissory note eight months ago. The Trial Court committed an error in believing the defence of the accused. The learned counsel contend that P.W.2 deposed before the Court that in his presence the amount was paid and he lent Rs.2 lakhs to the complainant. It is the case of the complainant that he borrowed the money from P.W.2 and made the payment to the accused. The learned counsel contend that P.W.2 is one of the signatory to the promissory note and all these materials have not been considered by the Trial Court. The very approach of the Trial Court is erroneous in coming to the conclusion that the complainant was not having any money to make the payment of Rs.4,50,000/- to the accused inspite of P.W.2 deposed before the Court that he lent the money to the complainant to help the accused. It is contended that nothing is elicited from the mouth of P.W.1 and P.W.2 to disbelieve the case of the complainant. On the other hand, the answers elicited from the mouth of D.W.1 and P.W.2 is clear with regard to the document of Ex.P.1 and promissory note which - 6 - NC: 2025:KHC:17141 CRL.A No. 1272 of 2015 is marked as Ex.P.7. Hence, it requires interference of this Court. 6. Per contra, the learned counsel for the respondent submits that the respondent not disputes the promissory note and the consideration receipt, but the same was taken earlier and the same was misused by the complainant. The learned counsel contend that both the promissory note as well as cheque were lost during traveling and to that effect D.W.1 got marked the document Ex.D.1 for having given the complaint that he lost the promissory note and cheque. 7. Having heard the learned counsel for the appellant and the learned counsel for the respondent and also having perused the material available on record, this Court has to reanalyze both oral and documentary evidence placed on record and having re-analyzed the material on record, the points that arise for the consideration of this Court are: (i) Whether the Trial Court committed an error in acquitting the accused and whether it requires interference of this Court by exercising the appellate jurisdiction? (ii) What order? - 7 - NC: 2025:KHC:17141 CRL.A No. 1272 of 2015 Point No.(i): 8. Having heard the learned counsel for both the parties and looking into the complaint averments, it is clear that the complainant was having acquaintance with the accused since he was a friend and when the accused was in need of money, he made the payment of Rs.4,50,000/- and in turn, the accused executed promissory note on the very same day. The promissory note is not disputed and the same is dated the date of loan transaction. It is the specific case of the complainant that the accused had agreed to re-pay the amount within two months and he did not make the payment within two months and when the complainant made the demand, cheque Ex.P.1 was given and the accused also not disputed the issuance of cheque. The only defence that he has taken is that he lost both the cheque and the promissory note while traveling. It is important to note that in the cross- examination of D.W.1, he categorically admits that he had signed the promissory note 6 to 8 months ago. There is no explanation on the part of the accused as to what made him to sign the promissory note 6 to 8 months ago and take the same while traveling. It is important to note that D.W.1 says that he signed the cheque and kept the same. He admits that - 8 - NC: 2025:KHC:17141 CRL.A No. 1272 of 2015 there was no difficulty for him to take the cheque and draw the money on the date of signing the cheque. It is also important to note that he says that he came to know about the loss of bag when he alighted from the bus at Yelahanka Upanagara. He admits that the distance between Gangammanagudi and Yelahanka Upanagara is about 5 kms. He says that his friend who was along with him one Rangaswamy told him to lodge the complaint in Gangammanagudi Police Station. Hence, he did not lodge the complaint at Yelahanka Police Station. He admits that when he gave the complaint in terms of Ex.D1, the police have not given any NCR. He admits that he gave the letter to the Syndicate Bank, Jayanagar Branch on 23.05.2008 for having lost the cheque, but he does not have the document of letter given to the bank. Hence, it is clear that no document is placed on record for having given the letter to the bank when he lost the cheque. He claims that he has given the complaint at Gangammanagudi Police Station, but there is no explanation why he lodged the complaint at Gangammanagudi Police Station, except stating that his friend advised him to lodge the complaint at Gangammanagudi Police Station. It is common sense that when the cheque and promissory note - 9 - NC: 2025:KHC:17141 CRL.A No. 1272 of 2015 were lost within the jurisdiction of Yelahanka Police Station, the complaint ought to have been lodged in the jurisdictional police station where the cheque and promissory note were lost, but the complaint was lodged in Gangammanagudi Police Station, which is at a distance of 5 kms. From Yelahanka. All these aspects were not taken note of by the Trial Court while considering the material on record. The theory of that he lost the cheque, which was written two days back and the promissory note, which was written 6 to 8 months ago, was accepted. 9. In the cross-examination of P.W.1, it is elicited that in the complaint he did not mention that he made the payment by way of cash, but he says that while filing the affidavit, he made the payment by cash. He admits that he did not mention the reason for availing the loan by the accused. He categorically says that the cheque was given on 13.08.2012 in his office. He says that he had kept Rs.2 lakhs in his house and he borrowed the amount of Rs.2.5 lakhs from P.W.2 and in order to substantiate the same, he examined P.W.2 before the Court and P.W.2 deposes that he lent an amount of Rs.2.5 lakhs to the complainant. P.W.2 in his cross-examination, admits that he did not produce any - 10 - NC: 2025:KHC:17141 CRL.A No. 1272 of 2015 document for having the money of Rs.2,50,000/- while lending to P.W.1. He volunteers that he always used to keep Rs.2,50,000/- to 5,00,000/-, but he does not have any money lending business. He says that he was present on 18.06.2012 when the amount was lent to the accused by the complainant. He also says that he had signed the promissory note. On perusal of the document, it is clear that he had signed as a witnesses to the promissory note and the consideration receipt and the document is dated 18.06.2012. Regarding payment as well as signing of the document, nothing is elicited from the mouth of P.W.2. When all these materials were available before the Court, the Trial Court ought to have accepted the case of the complainant, since the complainant not only deposed, but he had also examined P.W.2 who had lent him Rs.2,50,000/-. Probable case is made out by the complainant, but the Trial Court committed an error in coming to the conclusion that the accused has made out a probable case even though Ex.P.1 cheque and promissory note Ex.P.7 were placed on record and in the absence of any explanation on the part of the accused regarding execution of Ex.P.1 and Ex.P.7 and theory of he lost the same also cannot be accepted since both the cheque as well as the promissory note, - 11 - NC: 2025:KHC:17141 CRL.A No. 1272 of 2015 according to him, got prepared on different dates and what made him to carry the promissory note on the date of his travel, no explanation. The complaint was lodged in different jurisdictional police station and not where according to him he lost the bag, promissory note and the cheque. The jurisdictional police only to receive the complaint, investigate the matter and find out the bag, which was lost by the accused and the same was not done. In 313 statement, except stating that he is not liable to pay any amount to the complainant, nothing is stated with regard to the loss and defence which was taken is an afterthought and the Trial Court committed an error in appreciating the evidence available on record in its proper perspective and committed an error in accepting the theory of defence. Hence, it requires interference of this Court. Hence, I answer the point in the affirmative. Point No.(ii): 10. In view of the discussions made above, I pass the following:
Decision
ORDER (i) The appeal is allowed. - 12 - NC: 2025:KHC:17141 CRL.A No. 1272 of 2015 (ii) The impugned judgment of acquittal dated 02.09.2015 passed in C.C.No.3173/2013, is set aside. (iii) The accused is convicted for the offence punishable under Section 138 of the Negotiable Instruments Act. (iv) The accused is directed to pay the fine amount of Rs.5 lakhs within two months from today. (v) If the accused fails to pay the fine amount of Rs.5 lakhs within two months from today, he shall undergo imprisonment for a period of six months. On deposit of Rs.5 lakhs, an amount of Rs.4,90,000/- is ordered to be paid in favour of the complainant and the remaining amount of Rs.10,000/- is defrayed to the State. Sd/- (H.P.SANDESH) JUDGE MD List No.: 1 Sl No.: 56